Held, (1) the appellant did not, within the time required, exhaust
her administrative remedies in connection with her claim for benefits and,
therefore, cannot seek judicial review and (2) the Social Security
Administration's refusal to reopen its determination on the appellant's
claim after it had become final is not subject to judicial review.

[On June 1, 1960, the claimant filed application on behalf of her
children for child's insurance benefits on the earnings record of the
worker, who died on April 24, 1960. This application was denied initially
and upon reconsideration on the ground that the children did not have the
status of "children" of the deceased worker within the meaning of the
Social Security Act. The claimant was informed of the determination
initially by notice dated July 12, 1960, and, on reconsideration, by
notice dated October 13, 1960. The notice of October 13, 1960, also
advised the claimant as follows:

"* * * If you believe that the Reconsideration Determination is not
correct you may request a hearing before a hearing examiner of the Social
Security Administration. If you want a hearing you must request it not
later than 6 months from the date of this notice. * * *"

[On April 9, 1962, almost a year and a half after the date of the notice
of the reconsidered determination, the claimant filed a request for a
hearing, and a petition for an extension of time for filing a request for
hearing.

[Section 404.916 of Social Security Administration Regulations No. 4 (20
CFR 404.916) provides, as pertinent here, that a reconsidered
determination is final and binding on the parties to it, unless a hearing
is requested in accordance with section 404.918 of Regulations No. 4.

[Section 404.918 of Social Security Administration Regulations No. 4 (20
CFR 404.918) states, in pertinent part, that the request for a hearing
must be filed within 6 months after the date f mailing notice of the
reconsidered determination, except where the time is extended for "good
cause." Section 404.954(a) of Regulations No. 4 (CFR 404.954(a))
provides, as pertinent here, that:

"Any party to a reconsidered determination * * * may petition for an
extension of time for filing a request for hearing * * * although the time
for filing such request * * * has passed. * * * The petition shall be in
writing and shall state the reasons why the request * * * was not filed
within the required time. For good cause shown, a hearing examiner or the
Appeals Council, as the case may be, may extend the time for filing such
request * * *."

[On May 29, 1962, the claimant's request for a hearing was dismissed by a
hearing examiner of the Social Security Administration on the grounds that
the request was not timely filed in accordance with section 404.918 of
Regulations No. 4, and there was no showing of "good cause" for failure to
timely file, within the meaning of section 404.954(a) of
Regulations No. 4.

[Over 2 years later, the claimant petitioned for a reopening of the
reconsidered determination dated October 13, 1960; for an extension of
time to request a hearing; and for a hearing on the merits.

[Under section 404.957(b) of Regulations No. 4 (20 CFR
404.957(b)), and initial or reconsidered determination that has become
final may be reopened within 4 years after the date of the notice of the
initial determination upon a finding of good cause for reopening such
determination. Section 404.958 of Regulations No. 4 (CFR 404.958)
provides, in pertinent part, that good cause for reopening an initial or
reconsidered determination shall be deemed to exist where new and material
evidence is furnished after notice to the party to the initial
determination or where there is an error as to such determination on the
face of the evidence on which the determination is based. On July 1, 1964,
the Administration advised the claimant that her request for reopening was
denied because new and material evidence was not submitted and the
reconsidered determination of October 13, 1960, was correct and in
accordance with the evidence and the relevant law.

[The claimant then filed a request with a hearing examiner of the Social
Security Administration for review of the refusal to reopen the
reconsidered determination of October 13, 1960. The hearing examiner
denied this request on August 4, 1964, holding that the refusal to reopen
a final determination is not itself a "determination" within the meaning
of section 404.905 of Regulations No. 4 (20 CFR 404.905) and thus is not
subject to hearing or Appeals Council review.

[On October 1, 1964, the claimant commenced a civil action for judicial
review pursuant to section 205(g) of the Act, in the United States
District Court for the Eastern District of Pennsylvania, requesting
reversal of the reconsidered determination made on October 13, 1960.

[Section 205(g) of the Act provides in pertinent part that:

"Any individual, after final decision of the Secretary made after a
hearing to which he was a party, irrespective of the amount of
controversy, may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Secretary may allow. * * *."
(Emphasis supplied.)

[It was the position of the Social Security Administration that the
reconsidered determination of October 13, 1960, on the claimant's
application on June 1, 1960, became final and binding on the claimant
because she did not file a timely request for hearing with regard to such
reconsidered determination and, further, she did not establish "good
cause" for failing to timely file for a hearing. Since there was no
hearing, there could not have ben a "final decision of the Secretary made
after a hearing" subject to judicial review under section 205(g) of the
Act. Further, the claimant had no right to a hearing with respect to the
Administration's refusal to reopen the reconsidered determination of
October 13, 1960, since such refusal is not a "determination" within the
meaning of the Administration's regulations. Accordingly, the refusal to
reopen was not a "final decision of the Secretary made after a hearing"
within the meaning of section 205(g) of the Act and, therefore, was not
subject to judicial review.

[On June 27, 1966, the district court issued an order granting the
Secretary's motion for summary judgment. The claimant then appealed to the
United States Court of Appeals for the Third Circuit. The opinion of the
Court of Appeals follows.]

PER CURIAM:

The appellant is an unsuccessful claimant of social security benefits for
her children. The district court granted summary judgment denying the
claimant judicial relief. The record shows that the claimant did not
within the time required by law take the prescribed steps to obtain a full
administrative hearing upon or review of the merits of her claim.
Thereafter, the appellee's denial of a subsequent petition to reopen the
matter was not an appealable order Filice v. Celebrezze, 9th
Cir., 1963, 319 F.2d 433. In the circumstances the courts cannot properly
assist her.

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